[00:00:00] Speaker 04:
Next case is United States versus Duncan, 24-6235.

[00:00:08] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:10] Speaker 01:
My name is Kiefer Rose, and I represent Mr. Duncan.

[00:00:13] Speaker 01:
In Chavez Mesa 1, this Court held that a completed AO 247 is a minimally sufficient explanation for within guideline modifications.

[00:00:22] Speaker 01:
The question of first impression here

[00:00:24] Speaker 01:
is whether an incomplete AO 247 can be sufficient for above guideline denials.

[00:00:30] Speaker 01:
Two reasons why it cannot.

[00:00:32] Speaker 01:
Number one, Chavez Mesa 1 set the minimum procedural floor for partial grants as requiring a completed AO 247.

[00:00:40] Speaker 01:
And at a minimum, this court should hold that modification denials require that same nominal procedural requirement.

[00:00:48] Speaker 01:
Number two, denials, especially those resulting in what becomes an above guideline sentence,

[00:00:54] Speaker 01:
are the types of facts and circumstances that warrant more explanation.

[00:00:58] Speaker 03:
Well, can I just stop you there?

[00:01:00] Speaker 03:
So I think your second argument is that it would be a good idea to have more explanation.

[00:01:08] Speaker 01:
Certainly, Your Honor, especially in a case like this.

[00:01:11] Speaker 01:
The Supreme Court case, Chavez-Mesa 2, I'll refer to that one as Chavez-Mesa 2 for clarity.

[00:01:18] Speaker 01:
They make clear that this is a factual analysis, and sometimes facts and circumstance may dictate a completed AO 247 is sufficient.

[00:01:27] Speaker 01:
Other times, it may require more.

[00:01:29] Speaker 01:
And that case seems to really limit itself to within guideline modifications.

[00:01:34] Speaker 01:
It doesn't really branch out into denials as much.

[00:01:37] Speaker 01:
So my argument here is when we're dealing with a denial, certainly more explanation should be required.

[00:01:44] Speaker 03:
What is the source of our authority to impose an obligation of explanation, in your view?

[00:01:52] Speaker 03:
Do we have the authority to require additional explanation because we think it's a good idea or it'd be good as a matter of policy?

[00:02:03] Speaker 03:
Do we have the authority to do that?

[00:02:05] Speaker 01:
Well, certainly, Your Honor.

[00:02:07] Speaker 01:
I think when you look at Chavez Mesa 2, the Supreme Court grants

[00:02:11] Speaker 01:
a lot of deference to the appellate courts to set the standards that they believe are best.

[00:02:16] Speaker 01:
And when we look at other circuits, this circuit hasn't addressed denial specifically.

[00:02:21] Speaker 01:
When we turn to the other circuits, the second, fourth, seventh, eighth, and ninth circuit have all addressed this issue.

[00:02:28] Speaker 01:
And generally, if I can sum up their holdings generally, they require that a district court not just

[00:02:36] Speaker 01:
say that they exercise their discretion, but show how they exercise their discretion.

[00:02:40] Speaker 01:
And I believe that that's good policy and well within the bounds of what this court can do.

[00:02:47] Speaker ?:
Thank you.

[00:02:48] Speaker 04:
Do we have to ignore the second page of the AO 247 that was filed the next day?

[00:02:59] Speaker 01:
Your Honor, that's a really great question.

[00:03:01] Speaker 04:
Well, thank you.

[00:03:02] Speaker 01:
To be honest, one I haven't thought about and I'm not prepared on.

[00:03:07] Speaker 01:
Well, why can't we?

[00:03:10] Speaker 04:
I mean, the judge looks like made a mistake and only filed the first page, and then the following day files the second page.

[00:03:20] Speaker 04:
I mean, I guess I'm wondering what would prevent us from looking at the completed document.

[00:03:29] Speaker 01:
Oh, OK.

[00:03:30] Speaker 01:
I misunderstood your first question.

[00:03:32] Speaker 01:
So yes, certainly that is in the record, that page 2 of the AO 247.

[00:03:37] Speaker 01:
And when we initially filed the notice of appeal, it wasn't even in there.

[00:03:41] Speaker 01:
It certainly can be considered.

[00:03:43] Speaker 01:
But my argument is not that it can't be considered.

[00:03:46] Speaker 01:
It's that even the second page that was filed after is

[00:03:51] Speaker 01:
silent on the amended guideline range.

[00:03:53] Speaker 01:
It's never calculated.

[00:03:54] Speaker 04:
So we can look at it, but it's still deficient because it doesn't expressly indicate what the amended guideline range is.

[00:04:03] Speaker 04:
Correct, Your Honor.

[00:04:06] Speaker 04:
Did both of the parties in arguing to the court on this tell the court what the amended guideline range was?

[00:04:16] Speaker 01:
Yes, Your Honor.

[00:04:17] Speaker 01:
Both the defense counsel and the government in this case

[00:04:21] Speaker 01:
in their brief did state what they believed the guidelines were to be.

[00:04:25] Speaker 01:
But that doesn't excuse the district court's need to calculate that guidelines.

[00:04:30] Speaker 01:
When you look at the statute and the United States sentencing guidelines 1B1.10, that makes clear, along with the United States versus Dillon, that it's the judge's job to calculate those guidelines.

[00:04:44] Speaker 01:
And they've got to be correct.

[00:04:45] Speaker 01:
And that's what we don't have here.

[00:04:46] Speaker 01:
And that's the issue.

[00:04:49] Speaker 02:
The same district judge sentenced Mr. Duncan and then considered this motion for reduction.

[00:04:55] Speaker 02:
Both of that was done by the same judge, Judge Russell.

[00:04:57] Speaker 02:
Is that right?

[00:04:58] Speaker 02:
Correct, Your Honor.

[00:04:59] Speaker 02:
Doesn't Chavez Mesa talk about how if it's the same judge, then oftentimes what they need to say to document their decision on a motion for a reduction may be less because sometimes the judge just doesn't have much more to say.

[00:05:12] Speaker 02:
So how do we deal with that language in Chavez Mesa?

[00:05:16] Speaker 01:
Yes, Your Honor.

[00:05:17] Speaker 01:
And that's definitely a factor that the court

[00:05:19] Speaker 01:
must consider.

[00:05:20] Speaker 01:
And when looking at the original sentencing, it was the same judge, but a couple issues come up when we look at that.

[00:05:28] Speaker 01:
Number one, the sentence that the district court gave initially in its statements of reasons, it states that this crime warrants a within-guidelines sentence.

[00:05:41] Speaker 01:
This denial, we're now dealing with a 17-month-above guideline sentence.

[00:05:45] Speaker 01:
And when you look at United States versus Christie in the Second Circuit, they deal with very similar facts.

[00:05:51] Speaker 01:
And it's a denial of a motion where a judge uses the AO 247.

[00:05:56] Speaker 01:
And the court in Christie raises some concerns that I think are very relevant and on point here.

[00:06:01] Speaker 01:
It states that there's issues with this because

[00:06:05] Speaker 01:
The judge did not change the sentence.

[00:06:08] Speaker 01:
The changed sentence was now one month above the guidelines.

[00:06:11] Speaker 01:
And there was nothing on the record to show the reasoning of why a sentence that was initially worthy within guidelines is now not, or why a within guidelines sentence is now no longer appropriate.

[00:06:23] Speaker 01:
And so even looking at the entire record, it doesn't answer those basic questions that are necessary for appellate review.

[00:06:31] Speaker 01:
in this case.

[00:06:32] Speaker 01:
Let's say we agree with you.

[00:06:33] Speaker 02:
What are you asking us to do about it?

[00:06:34] Speaker 02:
Because in both your opening brief and your reply, you asked for us to remand for reconsideration.

[00:06:41] Speaker 02:
But in your reply, you also say remand for clarification.

[00:06:45] Speaker 02:
And those strike me as two different things.

[00:06:46] Speaker 02:
So what relief or remedy are you asking for?

[00:06:49] Speaker 01:
Your Honor, that's just my fault on the reply.

[00:06:52] Speaker 01:
What we're asking for is remand for

[00:06:56] Speaker 01:
the district court to explain its reasons.

[00:06:58] Speaker 01:
We're not questioning that the district court has discretion to make this decision.

[00:07:02] Speaker 02:
Are you asking us to remand the court to reconsider whether to grant relief or just to explain why it didn't?

[00:07:09] Speaker 01:
To reconsider whether to grant relief, followed with an explanation.

[00:07:20] Speaker 01:
When we look at Chavez-Mesa 1 and 2, I think they're very helpful in our analysis today.

[00:07:27] Speaker 01:
They set a floor and a ceiling of what is procedurally required, making clear that there are things that just cannot be assumed and that there are things that cannot be required.

[00:07:37] Speaker 04:
Well, if we can look at the second page, then it meets the floor, right?

[00:07:43] Speaker 04:
Because the judge filled out an AO 247.

[00:07:47] Speaker 04:
just like we have accepted as what you call the floor, right?

[00:07:55] Speaker 01:
No, Your Honor.

[00:07:55] Speaker 01:
What the floor is, according to Chavez-Mesa 1, in this case, when you look at the whole or in this court's decision, Chavez-Mesa 1, the floor requires two things.

[00:08:05] Speaker 01:
It requires some kind of statement that the district court considered the 355.3a factors.

[00:08:12] Speaker 01:
And it requires citation to the correctly calculated guidelines.

[00:08:17] Speaker 01:
These are the minimally sufficient necessary, and that can be accomplished through an AO 247 that's complete, or it can be accomplished through other means, whether it be in order or whatever.

[00:08:29] Speaker 01:
But those two things set the floor for meaningful appellate review.

[00:08:33] Speaker 04:
Well, in the AO 247, looking at the second page,

[00:08:37] Speaker 04:
says after considering each of the 353 factors, and particularly the history and characteristics of the defendant, the nature and circumstances of the offense, and the need for the sentence to reflect the seriousness of the offense, afford adequate deterrence to criminal conduct, and protect the public, the court concludes that sentence reduction would not adequately reflect the sentencing factors.

[00:09:00] Speaker 04:
That sounds to me like a pretty good discussion of the 353 factors.

[00:09:06] Speaker 01:
Yes, Your Honor, two points, if I may, to respond to your question.

[00:09:10] Speaker 01:
First, that satisfies one-half of the two-part requirements that this Court set in Chavez Mesa.

[00:09:17] Speaker 01:
That is a statement that shows that where the district court states, I consider the 355.3a factors, but it's still silent on the second fact, which is a citation to the correctly-admitted guidelines, which is required

[00:09:30] Speaker 01:
in United States versus Dillon and by statute.

[00:09:33] Speaker 01:
And that's the main issue.

[00:09:35] Speaker 04:
Dillon says the court has to consider it.

[00:09:38] Speaker 04:
It doesn't say the court has to announce it or expressly state it, does it?

[00:09:45] Speaker 01:
No, I don't believe Dillon says that.

[00:09:47] Speaker 01:
But that's exactly what Chavez Mesa deals with is what has to be on the record.

[00:09:51] Speaker 01:
And that's what's at issue here is it states that it has to be on the record a citation to the correctly calculated guidelines.

[00:09:59] Speaker 03:
Could you help us?

[00:10:00] Speaker 03:
Just tell me where in Mesa Chavez 2 you're relying on for that?

[00:10:07] Speaker 01:
In Chavez Mesa 1, Your Honor?

[00:10:09] Speaker 03:
Yeah.

[00:10:10] Speaker 03:
Where, I guess, in 1.

[00:10:12] Speaker 01:
Sure.

[00:10:12] Speaker 03:
Tell me where we require such a finding.

[00:10:16] Speaker 01:
Yes, Your Honor.

[00:10:20] Speaker 01:
On page 659 of that opinion, it transitions into, it starts with this hierarchy language about

[00:10:29] Speaker 01:
We can't require the same in initial sentencing.

[00:10:32] Speaker 01:
And then it transitions to what is the minimally sufficient requirement in sentence modifications.

[00:10:37] Speaker 01:
And it states that read together, Verdon Garcia and Ruiz-Tararez-Zas does establish the same general statement noting the appropriate guideline range and how it was calculated in applying 355.3a also suffices in sentence reduction proceedings.

[00:10:56] Speaker 03:
And then if we want to go... You say that governs here in this instance.

[00:11:00] Speaker 03:
I mean, isn't that distinguishable, I guess?

[00:11:04] Speaker 01:
It is, Your Honor, because Chavez Mesa 1 is very clear that we're only dealing with partial grants here.

[00:11:12] Speaker 01:
And I think that that brings up another important point that was important for both Chavez Mesa courts.

[00:11:18] Speaker 01:
As a partial grant, there's a built-in procedural clarity that the judge correctly calculated the guideline range.

[00:11:24] Speaker 01:
and applied them because he's changing the sentence to something that's within the amended guideline range.

[00:11:30] Speaker 01:
Here, that's completely absent.

[00:11:31] Speaker 01:
It's remained unchanged and 17 months above.

[00:11:35] Speaker 01:
So that's why my argument is at a minimum.

[00:11:37] Speaker 04:
Well, it's 17 months above the amended guideline range, right?

[00:11:41] Speaker 01:
Correct, yes.

[00:11:48] Speaker 01:
Transitioning to my second point, Your Honor, the denial should require more explanation.

[00:11:54] Speaker 01:
And I've already talked about how some of the other circuits address this.

[00:11:59] Speaker 01:
But I want to also point this Court's attention to the language used.

[00:12:04] Speaker 01:
At the bottom of page two, apart from not having the guideline calculation, we have three sentences at the bottom of page two.

[00:12:13] Speaker 01:
And these sentences, none of them,

[00:12:16] Speaker 01:
explain any facts particular to Mr. Duncan's case, any acknowledgement of the party's arguments, or any reason, similar to the court in the United States versus Christie, why an above-guidelines sentence was originally sufficient, or why a within-guidelines sentence was originally sufficient, but now it's not.

[00:12:36] Speaker 01:
It doesn't even mention Mr. Duncan's name.

[00:12:39] Speaker 04:
Well, but again, this is a situation where you have the same judge

[00:12:45] Speaker 04:
on the initial sentencing as deciding the motion for the reduction of sentence.

[00:12:52] Speaker 04:
And I think the case law says he doesn't have to repeat what was said at the initial sentencing for why the judge thought the sentence imposed was appropriate.

[00:13:06] Speaker 04:
And even though the guideline range has changed, it doesn't mean this is an out of guideline sentence, it was set

[00:13:13] Speaker 04:
within the guidelines existed at the time, and now the question is whether in the judge's discretion, the judge chooses to reduce it, right?

[00:13:26] Speaker 04:
I mean, don't we have to look at the reasons stated at the initial sentencing?

[00:13:34] Speaker 01:
I would love to answer your question.

[00:13:36] Speaker 01:
I would like to reserve what little time I have left for rebuttal.

[00:13:39] Speaker 01:
If I may either address that on rebuttal or address that right now and reserve some time, I'd be happy to.

[00:13:44] Speaker 04:
I'll give you the option.

[00:13:45] Speaker 04:
I would probably answer it.

[00:13:48] Speaker 04:
OK.

[00:13:51] Speaker 01:
Your Honor, looking at Chavez Mesa 2, the Supreme Court's decision, the government makes the argument

[00:13:58] Speaker 01:
essentially that there's nothing required procedurally on the record because this is a sentence modification.

[00:14:05] Speaker 01:
And as open-ended of an opinion as Chavez-Mesa 2 was, the Supreme Court clearly rejects this and says that is a step too far.

[00:14:13] Speaker 01:
There's got to be enough on the record to ensure meaningful appellate review and ensure that the public maintains trust.

[00:14:20] Speaker 01:
And that's in the same opinion where the court mentions that, yeah, we can look at the whole record.

[00:14:25] Speaker 01:
That's important.

[00:14:26] Speaker 01:
And that opinion also states that at bottom, the sentencing judge need only set forth enough to satisfy the appellate court that he has considered the party's arguments and has a reason basis for making his own legal decision.

[00:14:41] Speaker 01:
And we don't have any of that here.

[00:14:46] Speaker 04:
I'll give you a minute on rebuttal.

[00:14:48] Speaker 01:
Thank you, Your Honor.

[00:15:18] Speaker 00:
May it please the Court, Tanner Herman on behalf of the United States.

[00:15:22] Speaker 00:
I'd like to begin with this notion that Chavez-Mesa decided that a completed AO form is the procedural floor in this issue.

[00:15:31] Speaker 00:
Certainly Chavez-Mesa discussed the floor of what is required in denying a sentence reduction, but it did not state that a completed AO form is that floor.

[00:15:41] Speaker 00:
It stated that a completed AO form suffices to meet that floor.

[00:15:45] Speaker 00:
There's a distinction here between necessary and sufficient

[00:15:48] Speaker 00:
I don't believe any court has found that a completed AO form is necessary to uphold the denial of a sentence reduction.

[00:15:55] Speaker 04:
Well, if we can look at the second page, we have a completed form, don't we?

[00:16:00] Speaker 00:
We have a completed form, except we are missing that one notation as to the amended guideline range.

[00:16:06] Speaker 04:
And is it required that the district court expressly indicate the amended guideline

[00:16:15] Speaker 00:
No, our opinion is that it is not.

[00:16:17] Speaker 00:
The requirement is that they consider the amended guideline range in deciding whether and by how much to reduce the sentence.

[00:16:24] Speaker 00:
And that's imposed on the district court under United States Sentencing Guideline Provision 1B1.10.

[00:16:29] Speaker 00:
Now, as to whether the district court met that requirement in this case comes down to a construction of the record.

[00:16:36] Speaker 00:
The appellant would like you to read the record with blinders and look at only the absence of that amended guideline range and conclude the district court did not discharge this duty.

[00:16:45] Speaker 00:
On the other hand, the United States would like you to look at both section, both pages of the amended guideline range, which expressly state the district court did consider section 1B1.10 in conjunction with the fact that probation, the United States, and the defendant all agreed as to what the amended guideline range was in this case.

[00:17:04] Speaker 00:
And finally, the fact that the district court chose to deny a sentence reduction rather than dismiss the motion, which implicitly acknowledges that the district court knew there was an amended guideline range here.

[00:17:14] Speaker 00:
It seems the district court did not consider the exact amending guideline range relevant, since it noted that the guideline range opened the door for a sentence reduction, but that in its discretion it was going to deny that reduction.

[00:17:28] Speaker 02:
Well, wait a minute.

[00:17:29] Speaker 02:
How can we conclude the district court did not find amended guidelines to be, quote, relevant?

[00:17:34] Speaker 02:
First of all, doesn't the court have to consider the amended guidelines to be relevant?

[00:17:38] Speaker 02:
And secondly, how do you reach that conclusion?

[00:17:41] Speaker 00:
I'll amend my answer.

[00:17:42] Speaker 00:
I think the exact range of the guideline range, noting the exact range was not necessarily relevant to its ultimate decision.

[00:17:48] Speaker 00:
It did consider them as required by 1B1.10 and as noted on both pages of the AO form, but ultimately what that range is is mostly relevant as it comes to the third step of a sentencing reduction, which is deciding how much to reduce the sentence by if you were going to reduce it.

[00:18:05] Speaker 00:
It didn't reach that step here because it decided before that

[00:18:08] Speaker 00:
that it said a sentence reduction was not warranted under the 3553A factors.

[00:18:12] Speaker 02:
Regarding the 3553A factors, the district court did say that the circumstances leading to the conviction involved serious conduct.

[00:18:21] Speaker 02:
What were those circumstances and what was the serious conduct that the district court thought were important to not grant this motion?

[00:18:26] Speaker 00:
Well, if you look at the supplemental record, which includes the original sentencing proceedings, the district court took serious umbrage with the fact that during these robberies,

[00:18:35] Speaker 00:
Mr. Duncan pointed a firearm at the victims in store and even said he's lucky that nobody was killed in this incident.

[00:18:42] Speaker 00:
And so we think that combined with the notation on the AO form that the original sentencing proceedings which are before this court provide this court a sufficient basis on appellate review to decide there was a reasoned decision to deny a sentence reduction here, which is what is required.

[00:18:58] Speaker 02:
So your position is the district court does not have to restate what circumstances are, particularly when it's weighing that against now what is, I believe, an upward variance from the guidelines.

[00:19:11] Speaker 02:
We can just sort of glean from the entirety of the record and that's sufficient.

[00:19:15] Speaker 00:
Yes, and that's what Chavez-Mesa in these cases discuss in terms of procedural floor is whether reviewing the record and to that point the entire record

[00:19:24] Speaker 00:
this court can conclude that there was a reasoned basis for the decision here.

[00:19:30] Speaker 00:
And we think that it's clear, particularly with the addition of the original sentencing proceedings to the record, as to why this judge concluded the original sentence was the correct sentence for this crime.

[00:19:45] Speaker 02:
In your response brief, you also called the lack of documentation for the amended guidelines on page two of the form to be a Scrivener's error.

[00:19:56] Speaker 02:
Yes.

[00:19:57] Speaker 02:
But now I'm hearing you say it's not error at all.

[00:20:00] Speaker 02:
So is it a Scrivener's error?

[00:20:01] Speaker 02:
Is it not error?

[00:20:03] Speaker 02:
And if it's a Scrivener's error, that's really just a typographical error.

[00:20:06] Speaker 02:
So why would we call it that?

[00:20:08] Speaker 00:
We'll draw a distinction.

[00:20:10] Speaker 00:
I think our explanation is that it is likely a Scrivener's error, and we are classifying it in that way to say that it's not an error that invalidates this decision.

[00:20:19] Speaker 00:
And part of the basis for that is the fact that there are other indications in the AO form itself that the judge considered 1B1.10, which is what requires him to consider the amended guideline range in reaching his decision.

[00:20:31] Speaker 00:
Now, to that point, and I know there's been some discussion here as to whether or not Mr.

[00:20:37] Speaker 00:
Duncan is challenging the court's discretion to deny him a sentence reduction.

[00:20:41] Speaker 00:
I note in his reply brief he states that he is not.

[00:20:44] Speaker 00:
To the effect that the only remedy this court believes is appropriate is for the judge to send this back, to simply have the judge fill out that form, that section of the form.

[00:20:55] Speaker 00:
We're not opposed to that, but we do not think that Mr. Duncan should get an entire second bite of the apple here because there was one portion of the form that was not filled out, particularly where there are other portions of the form that expressly state that the amended guideline range was considered.

[00:21:09] Speaker 03:
Well, it refers to the rule, right?

[00:21:11] Speaker 00:
Yes.

[00:21:14] Speaker 00:
If there are no further questions, we'd ask that you affirm.

[00:21:19] Speaker 04:
Thank you.

[00:21:21] Speaker 04:
And we'll give you your one minute.

[00:21:35] Speaker 01:
Thank you, Your Honor.

[00:21:36] Speaker 01:
Counsel mentions this necessary versus sufficient notion, and I believe he's correct.

[00:21:41] Speaker 01:
I'm not trying to say that a complete AO form is necessary that mentions the guideline range and the 355 3A factors, but that's missing here, along with any other mention of the amended guideline range.

[00:21:54] Speaker 01:
So if that's what was held sufficient,

[00:21:57] Speaker 01:
We have nothing here that even comes close to that sufficiency, and that's the issue.

[00:22:02] Speaker 01:
Counsel also addressed this idea of denying versus dismissing a motion shows that he knew that a guideline range was applicable.

[00:22:11] Speaker 01:
That's not true.

[00:22:12] Speaker 01:
There are plenty of cases where a judge can just deny the motion if he finds a defendant ineligible.

[00:22:19] Speaker 01:
When you look at the AO 247 form,

[00:22:22] Speaker 01:
Its language is very vague and broad and it just says after considering the party's motions and US GG 1B1.10, I find that the defendant's request is denied.

[00:22:35] Speaker 01:
And lastly, there is no mention anywhere in the record of the amended guideline range and we don't know

[00:22:42] Speaker 01:
if the judge anchored his decision with the 3553A factors based off this, which is 3553A4, and it's crucial.

[00:22:51] Speaker 01:
Thank you, Your Honor.

[00:22:53] Speaker 04:
Thank you.

[00:22:57] Speaker 04:
And we will be adjourned.